This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

February 8, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CARL WILLIAM PURSLEY, JR.,

Petitioner – Appellant,

v.

AL ESTEP, Warden, LCF;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents – Appellees.

No. 06-1496

(D.C. No. 05-CV-1767-PSF-MEH)

(D. Colo.)

ORDER AND JUDGMENT

*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Carl W. Pursley, Jr., a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by

the district court, we DENY a COA and DISMISS.

Pursley was convicted in Colorado district court of attempted first degree

murder, second degree murder, and two habitual criminal counts. He was
 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) conditions 1

a petitioner’s right to appeal a district court’s denial of habeas relief under § 2254

upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only

if the applicant has made a substantial showing of the denial of a constitutional

right.” § 2253(c)(2). This requires Pursley to show “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted). Accordingly, Pursley may not appeal the district

court’s decision absent a grant of a COA by this court. 

- 2 -

sentenced to a total of 90 years’ imprisonment. He exhausted his direct appeal

rights on October 30, 1995, when the Colorado Supreme Court denied him a writ

of certiorari. On August 20, 1998, Pursley filed a motion for state postconviction

relief, exhausting his state collateral remedies on September 6, 2005. Pursley

then filed a petition for federal habeas relief pursuant to 28 U.S.C. § 2254 on

September 13, 2005, in which he asserted eleven grounds for relief. The district

court dismissed his petition as time-barred and denied a COA. Pursley now seeks

a COA from this court.1

Section 2244(d)(1)(A) provides a one-year statute of limitations for § 2254

petitions from the date the judgment becomes final. Pursley concedes that he had

until April 24, 1997 to file his petition, or one year from the date of AEDPA’s

enactment. See United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003). 

Yet, because “[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation under
- 3 -

this subsection,” § 2244(d)(2), the limitations period would be tolled during the

pendency of Pursley’s motion for state post-conviction relief.

Pursley’s central argument on appeal is that the district court erred in

finding that he did not file his motion for state post-conviction relief until August

20, 1998, well after the limitations period ended. He argues that we should look

not to the date the state motion was filed, but to his “Motion for Appointment of

Counsel for Post-Conviction Proceedings Pursuant to Colo.R.Crim.P.35(c),” dated

June 13, 1996, and subsequent motions seeking appointment of counsel, for

tolling purposes. Those motions were not part of the record before the district

court; however, Pursley has now moved to supplement the record on appeal. 

Having reviewed the motions, we see no reason to depart from the

judgment of the district court that Pursley’s motions for appointment of counsel

did not “state adequate factual or legal grounds for relief,” as required for tolling

under Colo. R. Crim. P. 35(c)(3)(iv), and thus did not toll the statute of

limitations. See Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006) (holding

that a motion for state post-conviction relief is “properly filed” only if it satisfies

the state’s procedural requirements). As such, this case is readily distinguishable

from our decision in Habteselassie v. Novak, in which we held that a motion for

relief pursuant to Colorado Rule of Criminal Procedure 35 tolled the statute of

limitations if it requested appointment of new counsel, sought post-conviction
- 4 -

relief, and stated adequate grounds for relief. 209 F.3d 1208, 1213 (10th Cir.

2000). 

In the alternative, Pursley argues that he should be excepted from

AEDPA’s statute of limitations on grounds of actual innocence. See Schlup v.

Delo, 513 U.S. 298, 327 (1995). Because he has presented no new evidence that

makes it “more likely than not that no reasonable juror” would have convicted

him, we decline to do so. Id.

For the reasons set forth above, Pursley’s motions to proceed in forma

pauperis and to supplement the record on appeal are GRANTED, his request for a

COA is DENIED, and his appeal is DISMISSED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge